February 13, 2012
Re: Disclosure of Information on Spending on Campaigns Leads to Open
and Secure Elections Act of 2012, the “DISCLOSE 2012 Act”
On behalf of the Brennan Center for Justice at NYU School of Law, I write to urge you to support the DISCLOSE 2012 Act. We commend Representatives Chris Van Hollen and Robert Brady for their continuing leadership, and urge you to join their efforts to increase transparency and accountability in American elections.
In Citizens United v. FEC, the Supreme Court opened the door to unlimited corporate and union spending in our elections. The combined effect of Citizens United, other court decisions, and a number of ineffectual FEC regulations has been to allow a flood of secret money in elections—and to keep Americans in the dark about the groups and individuals spending millions of dollars to influence their votes.
Yet, while Citizens United accelerated the spending arms race that began in 2010 and is cresting this year, the decision also soundly reaffirmed the importance of transparency—upholding by a vote of 8–1 the principle that Congress has the constitutional authority to require disclosure of the sources of political spending.
Unfortunately, disclosure is all too easily avoided under the current regulatory regime. The DISCLOSE 2012 Act would remedy this deficiency, and would empower American citizens by giving them knowledge about who is spending millions of dollars to influence elections.
The need for real transparency in political spending is acute. During the 2010 elections, an unprecedented amount of secret money inundated our political system. Outside groups spent over $135 million that was donated by undisclosed sources in their efforts to swing the outcome of the midterm elections.
In 2010, most anonymous spending occurred in the months immediately before the November election, so the majority of secret money this year likely remains unspent. But already in the 2012 cycle, corporations and individuals have donated unlimited sums to candidate-specific Super PACs and nonprofit groups, which have flooded the airwaves in early primary and caucus states. These groups have routinely failed to provide the public with meaningful information about the underlying sources of some or all of their contributions.
Clear signs point to the fact that secret money will continue to play a central role in 2012. According to data collected by Kantar Media-CMAG, which tracks television spending, about 40 percent of the advertising tied to the presidential race thus far—more than $24 million worth—has been funded by nonprofit groups that will never have to reveal their donors. Six of the ten Super PACs that raised the most money last year received money from untraceable sources. Of the more than $50 million raised in 2011 by two groups created by Karl Rove to influence this year’s election—American Crossroads and Crossroads GPS—nearly two-thirds was donated to the nonprofit affiliate that is not required to disclose its donors. Perhaps most egregiously, the Super PAC Citizens for Strength and Security PAC recently reported that 93 percent of the funds it raised in 2011 came from anonymous sources whose donations were channeled through an affiliated nonprofit.
The DISCLOSE 2012 Act represents a crucial step toward shining disinfecting sunlight on this secretive spending, and toward filling the regulatory void that characterizes elections in the aftermath of Citizens United. The legislation includes no provisions that would restrict speech by groups or individuals; rather, it ensures only that the public knows who is paying for the millions of dollars of advertising that dominate the airwaves during elections.
Among the salutary effects that the DISCLOSE 2012 Act will accomplish are the following:
- Requiring reporting of campaign expenditures over $10,000 by Super PACs, unions, corporations, and other groups by mandating disclosure to the FEC, within 24 hours of such expenditures or financial transfers to other groups for electioneering purposes;
- Requiring Super PACs, corporations, unions, and other groups to stand by their political ads by approving their messages, and requiring these groups to disclose their top financial contributors in their television and radio advertisements;
- Requiring corporations, unions, and other groups to disclose their political spending to their shareholders or members—including through readily accessible internet links on their websites—thus empowering shareholders and union members to hold accountable those who spend their money for political purposes; and
- Requiring all federal lobbyists to disclose their political expenditures, to ensure that the public can monitor lobbyists’ attempts to purchase influence over elected officials.
The DISCLOSE 2012 Act does not in any way limit the ability of individuals or groups to engage in political spending. But by bringing transparency to political spending, it will combat the threat of corruption posed when individuals and groups that are well-known to elected officials—but unknown to the public—inject unlimited sums into the political system.
The transparency that will follow passage of the DISCLOSE 2012 Act will provide voters with the information they need to render informed decisions at the ballot box. It will let shareholders and members hold corporations and unions accountable for the political spending they engage in. And it will grant the public the tools it requires to detect corruption engendered by currently anonymous campaign spending.
We urge you to restore transparency to our political system by supporting the DISCLOSE 2012 Act as a co-sponsor, and if necessary to ensure prompt consideration of this vital legislation, by signing a Discharge Petition to bring the bill directly to the House floor.
J. Adam Skaggs
Senior Counsel, Democracy Program
 Public Citizen, 12 Months After: The Effects of Citizens United on Elections and the Integrity of the Legislative Process 10 (2011), available at http://www.citizen.org/documents/Citizens-United-20110113.pdf.
 Demos & U.S. PIRG, Auctioning Democracy: The Rise of Super PACs & the 2012 Election 4–5 (2012).
 Dan Eggen, Secret Money Is Funding More Election Ads, Wash. Post, Feb. 6, 2012.
 Auctioning Democracy, supra note 2, at 4–5.
 Danny Yadron, Crossroads Groups Raise $51 Million in 2011, Wall St. J. Blog, Jan. 31, 2012, http://blogs.wsj.com/washwire/2012/01/31/crossroads-groups-raise-51-million-in-2011/
 Citizens for Strength and Security PAC, FEC Disclosure (Jan. 31, 2011), available at http://query.nictusa.com/cgi-bin/com_ind/2011_C00488429.